Nearly executed, inmate granted new hearing

February 25, 2004|By Steve Mills, Tribune staff reporter.

The U.S. Supreme Court on Tuesday reversed the death sentence of one of Texas' longest-serving Death Row inmates, a man who came within minutes of being executed last year before the court granted him a reprieve to hear his claims that prosecution misconduct had tainted his case.

In a 7-2 ruling, the court said Delma Banks was entitled to a new sentencing hearing as well as a chance to pursue his claim that prosecutors withheld crucial evidence during the guilt-innocence part of his trial.

Writing for the majority, Justice Ruth Bader Ginsburg said prosecutors withheld evidence at Banks' trial, then covered up their misconduct for nearly two decades as Banks moved closer to execution.

"When police or prosecutors conceal significant exculpatory or impeaching material in the state's possession," Ginsburg wrote, "it is ordinarily incumbent on the state to set the record straight."

While Banks' case is unlikely to affect the cases of other Death Row inmates, it again signals the high court's recent uneasiness over the death penalty's application and a concern for how misconduct by trial prosecutors threatens the integrity of the criminal justice system.

Only 14 other prisoners have been on Death Row in Texas longer than Banks. The state leads the country with more than 300 executions since capital punishment resumed in the U.S. more than 25 years ago.

Banks, 45, had eaten his final meal, was in a holding cell next to the state's death chamber in Huntsville, and was less than 10 minutes from receiving a lethal injection when the court issued a reprieve last March.

Banks, who is black, was convicted and sentenced to death by an all-white jury for the 1980 murder of Richard Whitehead, a 16-year-old who had worked with Banks at a fast-food restaurant near Texarkana.

Banks had no criminal record at the time of Whitehead's murder, and at trial and during his appeals has maintained his innocence.

Informant was paid

Banks' attorneys, led by George Kendall, claimed prosecutors in Bowie County withheld crucial evidence that would have cast doubt on the case, including that one key witness was a paid informant and another had been coached by authorities before he testified.

That conduct prompted a federal judge to order a new sentencing hearing for Banks and give him a chance to get a lesser sentence while fighting his conviction. The 5th U.S. Circuit Court of Appeals, however, reversed the judge and put Banks back on course for execution.

The Supreme Court's decision Tuesday reversed the 5th Circuit and its holdings that Banks had failed to follow the procedural rules and that some statements made by the crucial witnesses were not material.

The court found the misconduct tainted the trial's outcome.

Ginsburg wrote that prosecutors "withheld evidence that would have allowed Banks to discredit two essential prosecution witnesses."

Moreover, the prosecutors "raised no red flag" when the paid informant lied on the witness stand. Instead, prosecutors told the jury the informant had been "open and honest with you in every way," Ginsburg wrote.

In a partial dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote that they would have granted Banks relief, but only on one issue raised--a narrower holding than that from the majority.

Kendall said the case should deter prosecutors from misconduct, and should emphasize to appeals courts that such claims need thorough examination.

"Once the facts came out, it was clear the state had done some bad things at trial and covered it up," Kendall said.

"But one has to wonder why the case had to go this far."

James Elliott, the first assistant district attorney in Bowie County and one of the prosecutors who won Banks' conviction and death sentence--though he said he did not handle the witnesses who had lied--said the Supreme Court was wrong in its reading of the evidence.

"I have not read the opinion but it doesn't matter," he said in an interview, adding: "We are going to pursue this case until Delma Banks gets what he deserves."

He said the focus on misconduct was misplaced, in part because he said his office turned over evidence to defense lawyers, although it was years after the trial. He said it easily could have been otherwise.

"When we stand in our office, there is a shredder next to the copy machine. I could just as easily have shredded that [evidence] and been dishonest," Elliott said. "But I didn't, because I'm not."

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Issues in other cases: Air carrier liability, personal privacy, searches

Other Supreme Court actions Tuesday:

- The court decided 6-2 to uphold a $1.4 million damage award against Olympic Airways, Greece's former national carrier, over the death of an asthmatic passenger seated three rows from a flight's smoking section.

- In a 6-3 decision, justices ruled against a Virginia coal miner who sought $1,000 in damages on privacy grounds after the government disclosed his Social Security number and other personal information.

- Justices ruled 5-4 that a federal agent can be sued for violating the constitutional rights of a couple during a search of their Montana ranch, refusing to shield officers from personal liability when they make mistakes on search warrants.

- The court heard arguments in a lawsuit brought by a Pennsylvania man convicted of murder who says his death sentence should be overturned because of confusing jury instructions.